Reference no: EM131207028

Legal Research and Reasoning Final Exam-

Answer under Federal Rules of Evidence. Read each hypothetical. Each of the following questions has two parts. (a) Is the item hearsay? Answer "Yes" or "No." b. If it is hearsay is it admissible under a hearsay exception (or multiple exceptions) Fully explain your answers providing a Federal Rule(s) of Evidence if necessary.

NOTE: Even if the facts given are insufficient to supply all of the prerequisites of an exception, you should mention the exception if the facts given reasonably suggest and are not inconsistent with it.   Discuss possible exceptions

Q1. a. Jerry and Kim were charged with grand theft for stealing a famous painting from a museum. The prosecution claims that Jerry planned the heist but the theft was carried out by Kim and Lewis. Lewis was given immunity in exchange for testifying against Jerry. Kim entered a guilty plea. 

i. Will Kim be allowed to testify that Mike, a mutual friend, told her that Jerry told him that he planned to sell the painting for $1 million?

ii. Will Kim be allowed to testify that, the day after she agreed to help steal the painting, Jerry told her how to disable the security cameras at the museum?

iii. Will Lewis be allowed to testify that Jerry became frightened when the police sounded their sirens and said, "This reminds me of years ago when I got caught trying to rob a bank."

iv. If Lewis is impeached based on prior inconsistent statements he made to the police on April 1,the day he was arrested, will the prosecution be allowed to introduce a transcript of Lewis's testimony at the preliminary hearing on April 12 to establish a prior consistent statement?

b. Mary worked at a bank. Ned approached her teller's cage and gave her a demand note that said, "Go to the vault. Fill this sack with $20 bills. I've got a gun aimed at your head, so don't try anything heroic." Mary screamed. Ned shot her and ran out the door. Just before she died, Mary told an officer that Ned was her ex-husband and he had been robbing banks for years.

i. Is the demand note hearsay? If so does it meet an exception for admissibility?

ii. Can Mary's identification of Ned as the person who shot her be admitted at his trial for felony murder?

iii. Can Mary's statement be used at Ned's trial for the prior bank robberies?

c. Oscar is on trial for beating Lola, his wife. Pat, a neighbor who saw Oscar hitting Lola, called the police. The violence escalated while Pat was talking to the 911 operator and Pat screamed, "He's going to kill her!" Lola was taken to the hospital. The officer confronted Oscar and asked him why he did it. Oscar did not answer. Five minutes later the officer arrested Oscar. The next day a police officer interviewed Lola and she made the following statement, "Oscar hit me because he was drunk. He does that all the time, but this time it was worse."

i. Will Pat's statement to the 911 operator be admissible?

ii. Will Lola's statement be admissible if she ignores the subpoena and refuses to come to court to testify?

iii. Can Oscar's silence when the officer confronted him be used against him?

c. a. Prosecution of D for killing V. On the issue of D's fear of V, W1 testifies that he heard W2 say to D, "V has knifed three people in the last year."

d. Same as "a." above except the issue is whether V or D was the aggressor.

e. As tending to show that D had a revolver in his possession, the state offers the testimony of W that, as D passed W's house, W called her husband's attention to a revolver sticking out of D's pocket.

f. On the issue of the sanity of D, a woman, W testifies that D on numerous occasions said publicly, "I am the Pope."

g. On the issue of D's guilt of the crime of killing V, W testifies that D told him that he (D) fled the scene immediately after V's murder.

Q2.  Defendant is on trial for murder. The evidence is that defendant's husband was shot twelve times as he stood in the shower. Defendant does not contest the commission of the act, but pleads self-defense.  Defendant testifies on her own behalf.

Defendant's proof consists of a number of witnesses who will testify that for many years the decedent, a heavy drinker, continually abused the defendant, both physically and psychologically. Defendant also plans to call an expert psychologist who will testify that the defendant suffered from abused spouse syndrome. The psychologist will also testify that one of the symptoms of abused spouse syndrome is a constant and frequently triggered fear of further abuse at the hands of the abuser and that in the present case this fear could have caused defendant ultimately to kill the decedent in self-defense. Should this evidence be admitted?  Why or why not?  In rebuttal, the State seeks to offer evidence that the Defendant had a prior conviction for assault, two convictions for Driving Under the Influence (DUI) and was kicked out of college for plagiarizing her Master's Thesis in Forensic Psychology.  Should any of this evidence be admitted? Why or why not? (1-2 pages)

Q3.  Action against D Supermarket for injuries allegedly sustained when P slipped and fell while shopping in the D store. P claims he slipped on ketchup from a broken bottle. D claims P slipped on a wad of tobacco from P's mouth. W, a customer in the store who rushed to P's aid while P was lying unconscious on the floor, is P's first witness at trial. W testifies that she saw ketchup on the soles of P's shoes after the fall. On cross-examination defense counsel questions W's perception, memory, and veracity but fails to make much progress. Verdict is for P, but when the jury is polled it is discovered that the panel consists of only 11 people. A mistrial is declared. On retrial, P introduces evidence that W is dead and calls R, the court reporter from the first trial, to testify that he remembers W's former testimony and to relate it. D objects. What ruling and why?

What policies justify the use of former testimony of an unavailable witness? What are the dangers and drawbacks of the use of this type of evidence? What limitations should be imposed on the use of former testimony? (1-2 pages)

Q4.  Charge: murder of V. Dr. Jones is called to the stand by the prosecution. At D's request the judge first listens to Dr. Jones's testimony out of the presence of the jury. Jones states that just before V died, Jones said to her, "You are very badly wounded," and that shortly thereafter V mumbled, "D did it." The judge thinks that V probably knew she was dying but recognized that reasonable people might differ on that question. The judge also thinks that V probably did not say, "D did it," but rather mumbled something else which the doctor misunderstood, but the judge recognizes that reasonable persons might also differ on that. Defense counsel objects to Jones's being allowed to testify before the jury. What ruling and why? (probably less than a page)

Q5. From the book Thinking Like a Lawyer Chapters 11 and 12: Summarize, compare and contrast the historical and current different theories of legal reasoning as provided by Vandevelde. Critique them as well.  Which one (or ones) do you see as useful and which one (ones) do you see as harmful to the legal system and why - give a well-reasoned answer. (2-3 pages).